In the Attacks on Trans Rights, We’re Seeing the Rise of a New Confederacy

In the Attacks on Trans Rights, We’re Seeing the Rise of a New Confederacy

In the Attacks on Trans Rights, We’re Seeing the Rise of a New Confederacy

These legislative assaults constitute the spear tip of a nation within a nation, threatening the foundations of democracy.

Facebook
Twitter
Email
Flipboard
Pocket

A right-wing inquisition is singling out young transgender Americans, their parents, their teachers, and their doctors as targets in the battle over what kind of nation we are and want to be. Since 2021, roughly half the states have passed at least one law designed to eliminate medical or educational policies that recognize trans youth and protect them from abuse. According to the ACLU, 20 states enacted 72 new anti-trans laws in the first six months of 2023; more than 200 are in the pipeline.

Anti-trans campaigners seek to create a blanket of repression. Because the recent wave of anti-trans laws was not triggered by a landmark event like the rush of anti-abortion laws enacted in the wake of the Dobbs decision, this new reality has crept up on the country. Major media outlets have struggled to keep up with which laws have been passed in which states. With the exception, perhaps, of the trans people who find themselves in the cross hairs of these new laws, almost no one saw it coming.

The geography of gender panic illuminates the right wing’s stranglehold on a large swath of the United States. As of June 1, 24 states, including Texas, Florida, Georgia, and Arizona, account for almost all of the recent explosion of anti-trans legislation. More than 140 million people—42 percent of the US population—live in these states. All but Arizona and Georgia cast their electoral votes for Donald Trump in both 2016 and 2020, and of the states that voted for Trump twice, all but North Carolina, Ohio, and Alaska have binged on anti-trans laws (though North Carolina passed the nation’s first bathroom ban in 2016, which it later gave up after public pressure and business boycotts, and Ohio banned trans athletes from school sports).

As a comparison, the Guttmacher Institute counts 26 states where abortion is now banned or significantly restricted—a nearly identical list. With the passage of a handful of new laws or court decisions, the overlap may soon be complete. Laws attacking “critical race theory,” which also came on suddenly and are now widespread, have less of a complete overlap because such resolutions often arise in local school boards rather than in state legislatures. Nonetheless, according to a report from the UCLA Law School’s Critical Race Studies program, anti-CRT laws now affect 22 million public school students, almost half the nation’s total.

Given the avalanche of anti-trans legislation, it might be surprising to learn that the bulk of Americans are turned off by the extremism and cruelty of these laws. According to Roll Call, recent polling found that 64 percent of Americans believe that the sudden onset of anti-trans bills this year amounts to “too much legislation,” with politicians “playing political theater and using these bills as a wedge issue.” On youth access to gender-affirming medical care, an NPR/Ipsos poll found that 47 percent of Americans oppose restrictions while 31 percent support them, with 21 percent declining to answer. On allowing trans girls to compete in girls’ sports, however, the same survey found that 63 percent oppose. A Pew survey from June 2022 found that the number of people who think American society has gone too far in accepting trans people (38 percent) is roughly equal to the number who think it hasn’t gone far enough (36 percent).

How is it possible that a country with so little demand for anti-trans policies produced such an onslaught of anti-trans laws? The most important characteristic that these states share with states that have passed new anti-abortion and anti-CRT laws is a legal structure that reinforces minority control of governance—in effect, a democracy deficit. Political scientist Jacob Grumbach calls such states “laboratories against democracy.” Eight of the 24 states that have passed the worst anti-trans laws rank among the worst states for legislative gerrymandering, according to ratings issued by either the University of Southern California’s Schwarzenegger Institute or the World Population Review.

In 2010, Republicans got a head start redrawing district lines for state legislatures as well as for Congress. Although both parties can play the gerrymandering game, Republicans have been far more successful and systematic at it. Since 2010, of the country’s 20 most populous states, there is only one in which Democrats have controlled the governorship and both chambers of the legislature for 10 years or more—California. Republicans have achieved that feat in Arizona, Florida, Georgia, Indiana, Ohio, Tennessee, and Texas. In the 30 least populous states, Republicans have sustained at least a decade-long trifecta in nine (Alabama, Idaho, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and Wyoming), while Democrats have done so in five (Connecticut, Delaware, Hawaii, Oregon, and Rhode Island).

The attack on trans kids is backed by issue-specific groups like Moms for Liberty, who instigate local eruptions, but the overall campaign is part of a larger national advocacy network and supported by the legal organizations Alliance Defending Freedom and America First Legal, the latter led by Trump administration alumnus Stephen Miller. Together, these groups are out to torpedo the institutions, practices, and norms of democratic governance.

All of these developments are occurring within a networked system of right-wing policymaking at the state level that can and does function across the legislative, executive, and judicial branches. In today’s digitized world, the lack of geographic contiguity between, say, Mississippi and Montana no longer matters. And while the anti-trans and anti-abortion laws generate the most immediate attention, solely focusing on them obscures an even more consequential development: a model of political economy in which so-called social issues constitute the keystone of regressive and authoritarian governance.

In effect, a new Confederacy is emerging, not in the literal form of 160 years ago, but as a viable structure for subnational governance. Its constitutional foundation is secured by the increasingly right-wing Supreme Court’s reconfiguration of powers between national and state levels of government. The court has systematically withdrawn federal protections with the goal of enhancing state power using a variety of methods. One has been to eliminate a constitutionally protected right, as it did with abortion in the Dobbs decision. Another has been to eviscerate a national standard established in a statute, as when it removed federal oversight of discriminatory voting access schemes in the Shelby County ruling. Yet a third has been to increase the power of state governments in areas of the law that historically have been regulated primarily at that level, including education and public health.

As Jamelle Bouie wrote in The New York Times, the right hopes to eliminate a national “baseline for political and civic equality,” a goal that racists have been pursuing since Reconstruction. But the political ramifications of today’s overlapping anti-trans, anti-abortion, and anti-CRT regions go beyond history repeating itself. Although there is a distinctive Southern etiology to cries for states’ rights, it is dangerous to assume that white supremacy is limited to any particular region. Nor is it smart to ignore other regional conservative tropes, such as the tradition of land rights in Western states. Those who focus solely on the South as the predictable villain are still fighting the Civil War.

The subnational governance structure is a decentralized network of power centers rather than a single regime, but reliable one-party control enhances its strength. Two institutions beyond the governorship and the state legislature are critical. One is the state’s judiciary. Judges on the highest courts of most states have a clear partisan identification—either because they were appointed by a governor or because they won a partisan election. Additionally, state attorney general offices are increasingly involved in joint, multistate litigation projects such as the challenge to the availability of mifespristone. Attorneys general of both parties participate in such alliances, but those from states that conservatives fully control have the advantage of not needing to worry that they will be restrained by their legislatures or courts.

As a pure example of the paranoid style in American politics, this scare campaign against trans people is bad enough. It is a manufactured panic of political opportunism and religious fundamentalism, fed by an unconstrained media environment that hungers for news of whatever can be depicted as abnormal, ascendant, and invasive. The imagined horde of moody, discontented teens riding a supposed trend of gender experimentation provides an easy target for those who are still smarting from the legalization of same-sex marriage. Even if it becomes obvious at some point in the future that this frenzy was an episode of regrettable excess, real people—many of them highly vulnerable—are being harmed in the meantime.

Despite its massive impact, there is a temptation to dismiss the anti-trans campaign as merely another battle confined to the domain of cultural politics. Some on the liberal left agree that the cruelty is unconscionable but believe that the underlying problem is less significant than questions of economic redistribution. But the flood of anti-trans, anti-abortion, and anti-CRT laws is much more than a distraction from economically regressive legislation. Instead, the attacks on women, people of color, and trans people work hand-in-glove with attacks on the social institutions that we all depend on.

The inseparable nature of attacks on trans people and on our democratic institutions can be seen in the debates over public schools. The anti-trans campaign is a bonanza for groups engaged in a war against public education, which has long been a major target for the right wing, in spite of the fact that public education has support even in some deeply conservative states.

Painting schools as dens of “woke indoctrination,” as Florida Governor Ron DeSantis put it, facilitates disinvestment, which has direct material consequences. Of the 23 states most actively targeting trans youth and their families, the Education Law Center gave 16 grades of either an F or a D for their per-pupil funding level relative to the national average. In effect, however, there is a sectarian carve-out: Religious schools are often shielded from policies that starve public schools. A report issued in September 2022 estimated that by the end of that school year, Florida would shift an estimated 10 percent of its education budget from public to private schools. Most of the schools receiving those funds are religious and lack accreditation. In Tennessee, Governor Bill Lee has plans to start dozens of conservative charter schools by partnering with the K-12 school management arm of Hillsdale College, a Christian school in Michigan that DeSantis wants to use as a model for a public liberal arts college in his state.

In fact, there is a growing nationwide movement to reallocate public funds to private schools, including many religious schools using the same rhetoric of “parental freedom” that the anti-trans campaigns deploy. The Supreme Court opened the door for it, especially with its decision in 2021 in Carson v. Makin, which struck down a restriction on public tuition assistance funds going to religious schools. Although billions of dollars are at stake, the shifts in funding have gotten far less attention than anti-trans bills and the attacks on CRT and school libraries. The right wing is building a potentially massive edifice of religious, pro-market, and highly profitable education institutions in the same states where anti-trans hysteria has taken root, but the two issues are rarely discussed together.

The anti-trans, anti-public-education campaign also threatens to unload a Trojan horse of new surveillance techniques in local jurisdictions, where they are most likely to go unnoticed. Florida and Texas have created especially horrific legal nightmares for trans youth and their families: In both states, school officials are required by law to inform parents when their children adopt a social gender identity at school that differs from their gender assigned at birth and also to inform the authorities when parents support gender-affirming care for their children.

Panic-driven policies also have indirect material consequences. One historical example: Nothing has been more responsible for killing a robust American middle class than the evisceration of unions, for which red-baiting was essential. In Florida, DeSantis is attacking the state’s teachers’ unions for opposing his education policies, and multiple teachers’ unions have sued the state over a new law that makes organizing more difficult, maintaining that it is retaliation for that opposition. Teachers’ unions in other states have also fought the plethora of anti-trans and anti-public-school policies.

To fight back effectively, progressives need to engage in several distinct but equally important arenas: electoral politics, the law, and political and cultural analysis. It is urgent to defeat extremist legislation. But it is no less urgent to build a longer-term political framework that fully integrates sexuality and gender issues with efforts to redistribute wealth downward, reversing the trickle-up effects of a half-century of neoliberal policies.

For elections, with their inevitably short time horizons, progressives are most likely to rely on the broadest common denominator of opposition to anti-trans and anti-abortion campaigns: the strong individualist streak in American culture that rejects efforts to impose government control over deeply personal decisions. That strategy carried the day in the 2022 referendum in Kansas, when the coalition Kansans for Constitutional Freedom produced a stunning repudiation of restrictions on reproductive choice, a result echoed in the remarkable margin of victory this year for a pro-choice judge in Wisconsin.

In the next phase of the fight, legal challenges will dominate the news, bringing judicial venues to the forefront. Federal courts in Alabama, Arkansas, Florida, Tennessee, and West Virginia have already frozen enforcement of some of the most extreme laws. At least a few cases will likely reach the Supreme Court, where the outcomes in a post-Dobbs, almost post-law universe are hard to predict. On access to school bathrooms, for example, there are conflicting rulings from two US Courts of Appeal, making review by the Supreme Court within a year quite possible.

Although no one would know it from the state legislative debates focused on schools, federal law provides strong protections for trans people in workplaces covered by Title VII, which prohibits employment discrimination. Employers have accepted the ramifications of the 2020 Supreme Court decision that found gender identity discrimination to be a form of sex discrimination prohibited by Title VII. Although the court did not rule specifically on bathroom access at work, the reality on the ground is that virtually no employers have resisted allowing workers to self-identify their gender for that purpose. (The exceptions consist of religious entities claiming an exemption from Title VII and employers with fewer than 15 employees, which are not covered by Title VII.)

Because separate federal laws prohibit sex discrimination in employment and in education, anti-trans voices will argue that schools and jobs present different issues. But there is no evidence of risks to cisgender minors from policies that protect their trans schoolmates from discrimination, and there is something fundamentally irrational about having an antidiscrimination principle control American workplaces and the opposite approach prevail in schools—or, more accurately, in schools in roughly half the states.

Trans plaintiffs who challenge laws that restrict access to medical care generally raise constitutional questions. Multiple arguments apply: a liberty-based claim to bodily integrity and autonomy; an antidiscrimination claim based on allowing persons assigned male at birth, but not female at birth, to obtain access to male hormones as part of medical care, and vice versa; and a parental rights claim on behalf of families who seek to obtain appropriate transition care for their children but have been blocked by state law from doing so. In some contexts, a state law may violate the First Amendment—obviously so in the proposals to ban drag shows, but also more generally in the suppression of an individual’s expression of their gender.

In tandem with the constitutional themes used in elections, the invocation of the rights to liberty and autonomy resonates with the largest chunk of the public. Yet the arguments we might mobilize to win elections and to make our case in a court of law—though not wrong—are incomplete. As countless feminists and leftists have pointed out, reliance solely on privacy-type liberty claims can lead to a political cul-de-sac, a social location that accommodates shame and secrecy even as it sometimes—usually for the most well-off—also provides a bit of shelter. More expansive, equality-focused arguments can help assure basic safety and tolerance, but they are also grounded in individualist-centered claims of differential treatment in which persons whose gender presentation fits into the traditional binary or biological categories are treated as the norm. Gender variation is not a kind of pathology to be pitied, but a complicated mix of self-identification and self-discovery that varies from person to person.

What would a richer analysis of the current trans panic look like? If the past is any guide, discussions that use the same frames as those for legal issues are likely to devolve into a familiar contest between conservative orthodoxy and the norms of liberal constitutionalism. That approach so far falls short of pulling the institutional and material pieces together and situating the sexuality and gender issues at the center of a crisis of democracy. Such arguments are not for campaign ads or legal briefs, but advocates should not be limited to what works best in elections or satisfies the demands of legal analysis. More complex ideas need venues where they can gain traction and be refined—in progressive media, in other segments of civil society, and among allies.

This kind of frame expansion will not magically eliminate what can seem to many people like the strangeness of understanding gender as complex rather than as a simple and permanent binary. Gender transition is not new, however; what is new is its social visibility. It will one day fit into the mosaic of life experiences in the way that once-unthinkable marriages between men or between women now do. The genie of gender fluidity is out of the bottle, and no amount of legislation is going to put it back.

Meanwhile, progressives should not forfeit the opportunity to confront both the right-wing narrative of divinely prescribed gender and the lefty trope of the off-point or pointless culture war. Sexuality and gender issues are no longer secondary, if they ever were. Together with race, they are the right’s leading edge for the foreseeable future.

With a divided national government, no political segment is making much headway in Washington. Meanwhile, there is a stress test for democracy happening in the states, and the right is carving out its own territory—literally, figuratively, and legally.

Thank you for reading The Nation!

We hope you enjoyed the story you just read, just one of the many incisive, deeply reported articles we publish daily. Now more than ever, we need fearless journalism that moves the needle on important issues, uncovers malfeasance and corruption, and uplifts voices and perspectives that often go unheard in mainstream media.

Donate right now and help us hold the powerful accountable, shine a light on issues that would otherwise be swept under the rug, and build a more just and equitable future.

For nearly 160 years, The Nation has stood for truth, justice, and moral clarity. As a reader-supported publication, we are not beholden to the whims of advertisers or a corporate owner. But it does take financial resources to report on stories that may take weeks or months to investigate, thoroughly edit and fact-check articles, and get our stories to readers like you.

Donate today and stand with us for a better future. Thank you for being a supporter of independent journalism.

Thank you for your generosity.

Ad Policy
x